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Dempuyun
Lawyer Deng Puyun
Service area: Hubei
Discussion from Discretionary Plot to Legal Plot
Release date: 20 18- 10-25
(1) China's legislation on the fault of the victim.
In the general principles of criminal law, the victim's fault is not a statutory sentencing circumstance in most cases. In the actual case judgment, it is necessary to combine the provisions of article 6 1 of the general principles of criminal law on the general principle of sentencing. Regarding the victim's fault as a statutory situation, there are only a handful of provisions on the crime of self-defense and traffic accidents. However, except for self-defense, the current legal provisions cannot cover all situations in which the criminal responsibility of the offender is affected by the victim's fault. In other cases, it is still necessary to combine the basic principles of Article 5 of the Criminal Law. In addition, in the current relevant laws and interpretations, the Summary of the Symposium of National Courts on Maintaining Rural Stability is only applicable to rural areas, and the criteria for judging the victim's fault in Guiding Opinions of People's Courts on Sentencing (Trial) and Several Opinions on Implementing the Criminal Policy of Tempering Justice with Leniency are vague, which reflects the shortcomings of scattered legislation on the victim's fault, narrow scope of application and unsystematic.
"Criminal judges have no power to interpret criminal law at all, because they are not legislators"-however, due to the fault of the victim, it is still a discretionary circumstance in criminal law. In China's judicial practice, the discretionary circumstances stipulated by law are too broad and the judge's discretion is too large, which makes it difficult for judges to apply. Coupled with a series of reasons such as geographical differences, uneven professional quality of judicial personnel and uneven level of law enforcement personnel, the sentencing of similar cases varies greatly in different courts, which seriously affects the authority and seriousness of the law.
(two) the possibility and necessity of the victim's fault becoming a statutory circumstance. As a plot that judges can consider at their discretion, on the one hand, some judges consider the same plot, while others do not; On the other hand, the judge's application of discretionary circumstances is easily influenced by various external factors. Some judges will not consider it because they are afraid of the dissatisfaction or trouble of the victim's family, and some judges will resist external pressure and apply it. This is not only unfair to both parties, but also undermines the unity and authority of the law.
Therefore, it is necessary to legalize some discretionary circumstances that are often considered in practice, which is not only conducive to maintaining the construction of laws and systems, but also provides a clear basis for judges' sentencing.
At the same time, discretionary plot and statutory plot are not unrelated, but complement each other. Some discretionary circumstances summarized in the actual handling of cases can be transformed into statutory circumstances through legislative procedures after being proved reasonable and scientific in theory and practice.
At present, China's current criminal code pays less attention to the relevant legal provisions of the victim's fault than some developed countries. With the substantial improvement of economic level, the stability of political structure, the change of legal and cultural concepts, the correct guidance of public opinion and the perfection of alternative measures to death penalty, practice requires us to gradually improve relevant laws and regulations in determining the criminal responsibility of criminals to meet the needs of social development. This not only needs to be confirmed in principle in the criminal code, but also needs to be refined in relevant provisions or interpretations.
1. Principles in the general rules. As a principled provision in the general principles of criminal law, it can play a role in affecting the whole body. For the fault of the victim, a general provision is made in the general provisions. For each case, it is necessary to analyze the judicial organs in detail.
2. Elaboration of laws, regulations or legislative interpretations. For example, when both the victim and the perpetrator are at fault, how to specifically identify the victim's fault as an obstacle to the perpetrator's criminal responsibility and how to grasp its measurement standard. The current situation of the application of relevant laws in China is that the subjective aspect and objective harmful behavior of the actor are still the main basis for determining his criminal responsibility. The influence and size of the victim's fault in behavioral crime can not be determined simply from one aspect, but should be judged by combining various factors of the case. For example, the nature of the victim's fault behavior, the way of carrying out the behavior, whether the victim is malicious when carrying out the behavior, the degree of responsibility of the victim's fault behavior to the criminal result, the degree of social harm caused by the victim's fault behavior, the relationship between the victim and the offender, and so on. Under normal circumstances, the greater the subjective viciousness, the worse the means, the greater the impact on the criminal results, the greater the social adverse impact, and the greater the degree of fault. The criteria for judging the degree of fault can be established in relevant laws and regulations or judicial interpretations for reference by judicial organs when handling cases. However, the relevant provisions should not be too detailed, otherwise the significance of the victim's fault to conviction and sentencing will be lost. Therefore, legislators need to give the judicial organs room to apply on the basis of legal circumstances, so as to comprehensively identify various specific cases. If it is too abstract to be applied through legislation and interpretation, the Supreme People's Court or the Supreme People's Procuratorate can also publish guiding cases in the official gazette, which will have a positive impact on the judicial organs in handling similar cases.
Therefore, if the victim's fault is legally defined as a sentencing circumstance, it must be based on China's crime constitution system and theoretical research status. At the same time, the crime of intentional homicide is, after all, a crime of depriving others of their right to life, and the death penalty is also a punishment of depriving others of their right to life. How to grasp the balance between morality and justice and treat public opinion correctly is the key factor for the victim's fault to be correctly applied and the discretionary circumstances to be legalized.